Eckart v. The Regents of the U. of Cal. CA2/2 ( 2023 )

Filed 12/27/23 Eckart v. The Regents of the U. of Cal. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
MICHELE ECKART, B322172
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. 20STCP02884)
THE REGENTS OF THE
UNIVERSITY OF
CALIFORNIA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
James C. Chalfant, Judge. Reversed with directions.
Venable, Jean-Paul P. Cart and Harry Libarle for Defendant and
Appellant.
Advocacy and Andrew Post for Plaintiff and Respondent.
__________________________________________
This appeal involves two policies regarding UCLA’s layoff of an
employee. One policy is UCLA Procedure 60, a local rule addressing
employee layoffs due to lack of funds, lack of work, or reorganization. The
second policy is appellant Regents’ Personnel and Policies for Staff Members
(PPSM) governing the UC system. PPSM-70 limits employee complaints
eligible for administrative review, including layoff complaints.
Respondent Michele Eckart was laid off from UCLA’s School of Music
(SOM) in a departmental reorganization.1 She filed a PPSM-70 complaint
but does not claim “violation of the provisions pertaining to notice, order of
layoff, recall, preference for reemployment, or severance,” the only claims
that are allowed by PPSM-70. Instead, she alleges that the SOM failed to
prepare a “layoff proposal” under UCLA Procedure 60. This is not eligible for
review. The courts cannot rewrite PPSM-70, which has the force and effect of
a statute, or expand its scope to encompass Eckart’s claim. We reverse the
judgment in favor of Eckart and remand with directions to enter judgment for
Regents.
FACTS AND PROCEDURAL HISTORY
Eckart Is Laid Off at UCLA
Eckart was public events manager at the SOM’s theater unit. She was
the only person in her job classification. As a career employee at UCLA,
Eckart fell within PPSM-60, which governs the process for employee layoffs.
UCLA Procedure 60 implements the policy in PPSM-60.
In June 2018, UCLA notified Eckart that her position was being
eliminated in a reorganization, effective August 18, 2018. She was offered
severance pay, or preference for reemployment. Eckart filed a complaint with
UCLA under PPSM-70, which governs challenges to university decisions.
Eckart’s complaint alleged that UCLA violated layoff procedures. She
requested review of (1) the budgetary and organizational analysis forming
the basis of the layoff proposal; (2) the criteria used to generate the layoff
order; (3) the data used to calculate the seniority points of employees affected
by the layoff; and (4) the degree to which the layoff process complied with
PPSM-60 standards.
1 The Regents administer UCLA. (Cal. Const., art. IX, § 9.)
2
The SOM Rejects Eckart’s Complaint
UCLA’s Human Resources department (HR) referred Eckart’s
complaint to the SOM. Assistant dean of the SOM, Shannon McGarry,
rejected the complaint in November 2018. Claiming managerial prerogative
to initiate layoffs, McGarry wrote that the SOM performed a year-long
analysis and determined that it should eliminate Eckart’s position.
McGarry’s decision was “Step I” of the complaint resolution process.
In January 2019, the dean of the SOM reviewed and denied Eckart’s
complaint. The dean wrote that a lengthy analysis of the theater unit led to a
decision to eliminate Eckart’s position. The layoff did not violate any policies.
This was “Step II” of the complaint resolution process.
Eckart Seeks an Administrative Hearing
Eckart requested review of the decision. After the hearing was
repeatedly canceled, she petitioned for a writ of mandate in September 2020,
to force UCLA to hold a hearing. In response to the petition, UCLA
scheduled an administrative hearing for February 2021.
Eckart asserted that her procedural due process rights were violated by
the delay in holding the review hearing; her substantive due process rights
were violated by the absence of a layoff proposal or letter of justification; and
the elimination of her position in a reorganization was arbitrary and
unjustified.
UCLA responded that the delay was not before the hearing officer, it
followed proper procedures, and may reorganize operations and lay off
employees. The only reviewable issue was whether the layoff violated
“provisions pertaining to notice, order of layoff, recall, preference for
reemployment, or severance.” (Underlining & boldface omitted.) Here, notice
was proper, Eckart was not laid off before a less senior employee, and she
received the correct severance pay.
The Administrative Evidentiary Hearing
The hearing officer considered documentary evidence and heard live
testimony at the hearing, which is “Step III” of the administrative process.
UCLA HR employee Sara Haider is familiar with university policies.
She testified that the SOM submitted documentation for a proposed layoff.
3
Eckart and Theater Supervisor Corey Frey were laid off from the theater unit
at the same time; however, they are not in the same job classification.
Haider stated that departments have authority to decide if a position is
necessary based on funding, reorganization, workload, and operational needs.
A department completes a “request for order of layoff” listing “what
employees are under [a] title code, and . . . the date of hire.” A “justification
letter” is submitted to HR if a department has multiple people in a title code
and plans “to lay off the more senior individual” instead of a more recent hire.
If only one person is in a title code, no seniority issues arise, no justification
letter is needed, and HR need only calculate severance pay.
Haider opined that Eckart’s notice of layoff complied with PPSM-60.
Campus procedures allow career employees to be laid off for lack of funds or
lack of work, including lack of work due to reorganization. Eckart was
offered severance pay based on her seniority and a merit increase.
Alternatively, she could choose to be recalled to another position. No letter of
justification had to be given because seniority was not at issue.
Assistant Dean McGarry was hired in 2016, when the SOM was
formed. She promptly began an organizational assessment, requesting an
audit “[b]ecause the finances of the theater unit were a mess” and clarity was
needed about income and expenses. Theater Unit Manager Martha Ryder
was unable to provide clarification.2 The audit revealed “significant issues”
with theater unit oversight. In 2012 to 2014, the theater unit showed net
income; from 2014 to 2017, it lost $82,097.
Based on the audit, the SOM reorganized by eliminating the theater
unit. Now, a theater director oversees productions and determines staffing
needs; a chief financial officer controls finances; and an operations team
handles billing. The theater director has different responsibilities from those
done by former Public Events Manager Eckart.
2 Ryder retired before the audit was done.Activities now performed by
the SOM were previously divided between the School of Arts and
Architecture and the Humanities Division of the College of Letters and
Sciences.
4
McGarry testified that the decision to lay off Eckart did not violate
seniority rules. Two layoff forms were submitted, one for Eckart and one for
Corey Frey because they had different job classifications. Eckart was “the
only career employee with her title classification that was laid off.”
Accordingly, a letter of justification was not required. McGarry was unaware
whether the SOM prepared a “layoff proposal” for HR.
McGarry testified that reorganization “vastly improved all of the
operations.” The SOM was able to cut costs; finances are no longer in
disarray; and it better serves students and faculty, who were previously
charged fees to hold classes in the theater. Eckart’s job performance was
irrelevant to the reorganization and layoff decisions.
UCLA Administrative Analyst Dyanna De Alba processes layoff
requests and calculates service credits. When she receives a layoff request,
she checks to ensure that “everyone in this specific title code under this
department code is on the list.” In this instance, Eckart was the only career
employee on the roster in her particular job classification. Because Eckart
had 192 months of service, she was entitled to 16 weeks of severance pay.
Barry Cautivar was director of staff personnel at the SOM in 2018. He
signed the order of layoff form to eliminate Eckart’s position. No letter of
justification was required because the layoff action did not disturb seniority
rules. Similarly, no layoff proposal analyzing job performance and
disciplinary action was attached because Eckart’s layoff was made in order of
seniority. Eckart received severance for being laid off; employees terminated
for cause do not receive severance.
The Hearing Officer’s Decision
In 2021, the hearing officer found that UCLA did not violate PPSM-60
or UCLA Procedure 60. The decision states that the hearing officer lacks
authority to review the merits of the layoff, which is solely UCLA’s
managerial responsibility under PPSM-60.
The hearing officer addressed Eckart’s claim that UCLA failed to
submit to HR under UCLA Procedure 60 a layoff proposal analyzing the
effects of a reorganization, the employee’s job performance and discipline, the
functions performed, and the positions eliminated. The decision states that a
layoff proposal must be given to HR, but “nothing indicat[es] that this
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analysis needs to be given to the impacted employee . . . because the
employee is not allowed to challenge the rationale or decision making [sic] for
the reorganization or its consequences.”
An order of layoff form was completed. No justification letter was
needed because seniority was not at issue and no justification was required to
support the decision to reorganize by eliminating a unit in the SOM. The
hearing officer credited the testimony from all the witnesses, who affirmed
that the only document UCLA had to provide to Eckart was the “Order of
Layoff,” which need not include information justifying the reorganization.
Eckart Seeks Judicial Relief
Eckart amended her writ petition in 2021 to allege that her
administrative remedies were exhausted after a three-year delay. She sought
relief for an alleged denial of a fair trial on procedural grounds and because
the hearing officer’s decision was an abuse of discretion.
Eckart brought a motion for judgment on the petition. She argued that
her layoff was arbitrary and capricious because UCLA ignored university
protocols and targeted her without justification; her due process rights were
infringed by the 30-month delay in securing a review hearing; and the
hearing officer failed to consider that UCLA did not prepare a layoff proposal.
The Trial Court’s Ruling
The court rejected Eckart’s procedural due process claim. It found that
delays in the review hearing were caused by UCLA, by Eckart’s
unavailability after she moved to Kentucky, and by the COVID pandemic.
The court concluded that Eckart did not show prejudice from the delay.
Next, the court concluded that the hearing officer’s findings support his
decision that a layoff proposal “does not need to be given to the employee.”
There was no legal basis for the court to review the merits of layoff decisions,
which are solely the university’s responsibility. Substantial evidence
supports the hearing officer’s finding that the layoff was legitimate: Eckart
presented no evidence that the layoff was a pretext for corrective action or
termination.
The court wrote that the SOM admittedly failed to generate a layoff
proposal. It found that UCLA Procedure 60 requires submission of a layoff
proposal to HR “in every case, whether a single employee or multiple
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employees are subject to layoff.” The layoff proposal must address the impact
of lack of funding or work, or the effects of reorganization; consideration of
affected employees’ job performance and discipline; and an analysis to
determine which essential functions need to be performed and which
functions and positions will be eliminated.
The court noted that the SOM wrote a letter to HR stating that “ ‘a
diligent and yearlong process’ ” analyzed the theater unit was performed,
which “ ‘determined that it needed to eliminate Ms. Eckart’s position.’ ” The
court concluded that the hearing officer must decide whether the SOM’s
letter to HR complied with UCLA Procedure 60.
The court issued a peremptory writ remanding the matter for an
evidentiary hearing to determine if the SOM substantially complied with
UCLA Procedure 60 “by preparing the equivalent of a Layoff Proposal.” If
the hearing officer finds substantial compliance, the 2021 administrative
decision “shall remain as decided, in favor of [UCLA].” Absent substantial
compliance, the hearing officer must set aside the 2021 decision and “decide
what remedies [Eckart] must receive” under PPSM-70. The Regents appeal
the judgment.
DISCUSSION
1. Standard of Review
On a petition for writ of mandate, the court determines if there was
“prejudicial abuse of discretion. Abuse of discretion is established if the
[agency] has not proceeded in the manner required by law, the order or
decision is not supported by the findings, or the findings are not supported by
the evidence.” (Code Civ. Proc., § 1094.5, subd. (b).)
Our review is the same as that of the trial court. The substantial
evidence test applies to factual findings but questions of law are reviewed de
novo, including interpretation of statutes or regulations. (Department of
Corrections & Rehabilitation v. State Personnel Bd. (2015) 238 Cal.App.4th
710, 716–717.) “[T]he ultimate determination of procedural fairness amounts
to a question of law.” (Nasha v. City of Los Angeles (2004) 125 Cal.App.4th
470, 482; Doe v. Regents of University of California (2016) 5 Cal.App.5th
1055, 1073.)
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2. Interpretation of the PPSM
As a constitutionally created entity, the Regents “ ‘have virtual
autonomy in self-governance.’ ” (Miklosy v. Regents of University of
California (2008) 44 Cal.4th 876, 889–890.) The Regents’ policies and
procedures “have the force and effect of statute.” (Kim v. Regents of
University of California (2000) 80 Cal.App.4th 160, 165; Regents of University
of California v. City of Santa Monica (1978) 77 Cal.App.3d 130, 135 [because
the Regents’ power to administer the university is virtually exclusive, their
regulatory policies are equivalent to state statutes].) We “ ‘ “accord meaning
to every word and phrase” ’ ” in the Regents’ policies, giving the language its
plain, commonsense meaning. (Akella v. Regents of University of California
(2021) 61 Cal.App.5th 801, 818.)
3. The Policies and Procedures at Issue
a. PPSM-60
PPSM-60 covers layoffs of career employees. Its policy is to “minimize
the effects of indefinite layoffs” by giving employees opportunities for
reassignment, a right to recall, preference for reemployment, and severance
pay; employees are entitled to 30 days’ advance prior to layoff. PPSM-60
makes layoff decisions “solely” the university’s responsibility. (PPSM-60,
§ III.A.) Nothing in PPSM-60 states that an employee may use its process to
contest the university’s need for layoffs.
b. UCLA Procedure 60
The trial court relied on UCLA’s Procedure 60, which implements
PPSM-60. It authorizes the head of a department to lay off career employees,
temporarily or indefinitely, if necessary due to lack of funds or lack of work,
“including lack of work due to reorganization.” The department submits to
HR a “Layoff Proposal” assessing lack of funding, lack of work, or the effects
of reorganization and an “Order of Layoff Form” that includes classifications
selected for indefinite layoff and lists all affected positions. (UCLA Procedure
60, § C.)
Procedure 60 requires HR to calculate seniority and review the layoff
proposal. If there are multiple employees in a job classification and a
department intends to lay off a more senior employee, a “Letter of
Justification” must document the rationale for retaining employees out of
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seniority order. HR must approve or disapprove the proposed layoffs,
including retention of any employees out of order of seniority. Employees are
entitled to 30 days advance written notice prior to lay off. (UCLA Procedure
60, § C.)
c. PPSM-70
PPSM-70 covers “Complaint Resolution.” Complaints “Within the
Scope of” PPSM-70 include management actions that “adversely affected that
employee’s existing terms and conditions of employment in a material way
and violated a provision of the [PPSM].” (PPSM-70, § III.B.4.a.ii.) “Matters
Outside the Scope of” a PPSM-70 complaint include actions “taken at the
‘discretion,’ ‘sole discretion,’ or ‘judgment’ of the University or its
management . . . unless the complaint alleges that the action was taken for
discriminatory or retaliatory reasons.” (PPSM-70, § III.B.4.b.iv.)
PPSM-70, section V.E.2.a lists “Complaints Eligible for Review.” It
reads, “The only complaints eligible for review at Step III are complaints that
alleged the violation of a policy listed below.” (Italics added.) Specific to this
case is PPSM-70, section V.E.2.a.4, which allows employees to pursue
complaints under PPSM-60, “provided that the complaint alleged violation of
the provisions pertaining to notice, order of layoff, recall, preference for
reemployment, or severance.” (Italics added.)
4. PPSM-70 Does Not Authorize Challenges for Failure to
Submit a “Layoff Proposal” to HR
At the administrative hearing and in the trial court, focus was directed
at the SOM’s alleged failure to submit a “Layoff Proposal” to HR under UCLA
Procedure 60. As we shall see, this focus was misplaced. We invited the
parties to submit letter briefs explaining how PPSM-70 authorizes an
employee to challenge a failure to submit a layoff proposal to HR. We
conclude that PPSM-70 does not authorize Eckart’s claim.
Eckart is pursuing a complaint under PPSM-70. PPSM-70 is not
“wildly ambiguous,” contrary to Eckart’s letter brief. It is straightforward. It
lists the “only complaints eligible for review.” For career employees like
Eckart, a layoff is eligible for review “provided that the complaint alleged
violation of the provisions pertaining to notice, order of layoff, recall,
preference for reemployment, or severance.” On de novo review, we see no
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ambiguity in this language. Notably, the list of provisos does not include
“Layoff Proposals” as being eligible for review.
Eckart does not challenge any of the categories listed in PPSM-70,
section V.E.2.a.4. She was entitled to 30-days’ notice of a layoff and received
60-days’ notice. Documents and testimony show the order of layoff was
issued and Eckart was the only person in her job classification to be laid off:
She was the most senior employee and the least senior one. Recall to
employment is not at issue because Eckart chose not to be recalled. It is
undisputed that Eckart received severance pay.
PPSM-70 directs the HR director to determine if a complaint is timely
and qualifies for review. However, nothing in the record suggests that HR
may unilaterally expand the scope of PPSM-70, section V.E.2.a.4 by adding to
its list of actions subject to Step III review. On the contrary, UCLA
Procedure 70 (implementing PPSM-70) directs that a hearing officer “shall
not add to, delete from, or otherwise modify the provisions” of PPSM-70.
Courts defer “to an administrative body’s reasonable construction of
relevant statutory provisions within its field of expertise.” (Department of
Corrections & Rehabilitation v. State Personnel Bd., supra, 238 Cal.App.4th
at p. 717.) Allowing complaints about “layoff proposals” is not a reasonable
reading of PPSM-70. It is, instead, an impermissible expansion of PPSM-70’s
clear limits on matters eligible for review.3
Neither the hearing officer nor the courts have authority to rewrite a
statute by expanding the scope of a complaint beyond PPSM-70’s list of
eligible procedural violations. Whether a “layoff proposal” was submitted to
HR regarding a reorganization under UCLA Procedure 60 is not a proper
subject for an employee complaint. To say otherwise infringes on the SOM’s
managerial discretion to evaluate its staffing needs.
3 At the Step III hearing, UCLA correctly argued that Eckart’s
complaint fails because she “failed to prove by a preponderance of the
evidence that the University’s layoff decision violated the ‘provisions
pertaining to notice, order of layoff, recall, preference for reemployment, or
severance.’ ” The proper focus identified in UCLA’s trial brief was, somehow,
lost along the way.
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PPSM-60, section III.A addresses managerial discretion. It reads, “If,
in the judgment of the University, budgetary or operational
considerations make it necessary to curtail operations, reorganize, reduce the
hours of the workforce and/or reduce the workforce, staffing levels will be
reduced in accordance with this policy. It is solely the University’s
responsibility to determine the need for layoffs, the classifications of
employees to be laid off, and the layoff unit.” (Underlining omitted & first
boldface added.)
The managerial discretion language in PPSM-60 fortifies our
conclusion that Eckart cannot complain about any possible failure to submit
a layoff proposal to HR. Managerial action “taken at the ‘discretion,’ ‘sole
discretion,’ or ‘judgment’ of the University” is not subject to review, unless
the complaint alleges that it was the result of discrimination and retaliation.
(PPSM-70, § III.B.4.b.iv.)
The SOM’s decision to reorganize and lay off Eckart was solely its
responsibility, made in the exercise of its judgment. No claim is made that
the reorganization or layoff was the result of discrimination and retaliation.
Read as a whole, PPSM-60 and PPSM-70 allow Eckart to assert that the
SOM did not give adequate notice of layoff, deviated from a seniority list, or
failed to offer reemployment or severance pay. She has no standing to
challenge the validity of the reorganization or to single-handedly derail the
SOM’s operational decisions.
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DISPOSITION
The judgment is reversed. The case is remanded with directions to
enter judgment in favor of appellant. The parties shall bear their own costs
on appeal.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
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